Evidence — continued from Previous Page
request that a letter be sent to the insureds to obtain their consent to unredacted versions of the documents and/or their contact information. If the insurer resists, and a motion is
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necessary, you can explain to the court that not only is the discovery sought rele- vant as substantive evidence to prove the truth of plaintiff’s claims, but also it is rele- vant because these third-party insureds are actually potential witnesses to this case. Since those third-party insureds are victims of exactly the same unlawful behavior that is at issue in your case, they could poten- tially testify as to defendants’ pattern and practice of claims handling. The discovery sought by the letter to third-party insureds would allow people whose cases are direct- ly relevant to this case an opportunity to contribute to evidence supporting the argument that the insurer engages in a pattern and practice of this unreasonable and/or unlawful behavior. Notably, in Pioneer Electrics (USA), Inc.
v. Superior Court (2007) 40 Cal.4th 360 [53 Cal.Rptr.3d 513], which was decided after Colonial Life, the Supreme Court found that disclosure of such person’s contact information is directly contemplated by the discovery statutes because these per- sons qualify as “percipient witnesses” to defendants’ pattern and practice conduct. The Court also weighed the competing interests in a discovering third-parties’ con- tact information and their rights to privacy. Specifically, the Supreme Court considered
“the extent to which California’s right to privacy provision (Cal. Const., art. I, § 1) protects [] purchasers from having their identifying information disclosed to the plaintiff during civil discovery proceedings in a consumers’ rights class action against the seller.” It held: [W]e think the trial court properly evaluated the alternatives, balanced the competing interests, and permitted dis- closure of contact information regard- ing Pioneer’s complaining customers unless, following proper notice to them, they registered a written objec- tion. These customers had no reason- able expectation of any greater degree of privacy, and no serious invasion of their privacy interests would be threat- ened by requiring them affirmatively to object to disclosure. Finally, in all trials jurors want to know
why the parties acted the way that they did. If you can establish that the insurer engaged in the bad-faith conduct towards your client because of a systemic practice that damages other policyholders, the jurors will be eager to punish the insurer and deter similar conduct in the future. Scott C. Glovsky is a trial attorney in
Pasadena. His trial practice often includes cat- astrophic personal-injury, insurance bad-faith, and civil-rights litigation. He received the “Street Fighter of the Year Award” from CAOC in 2008. He received his undergraduate degree from the University of California, Berkeley and his J.D. from Cornell Law School.
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J. Grant Kennedy 213.220.2521 25 years of experience/over 130 Civil Trials.
40— The Advocate Magazine JUNE 2011
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